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EXHIBIT 10.53 AMENDED AND RESTATED LETTER OF CREDIT CASH COLLATERAL AGREEMENT

Cash Collateral Agreement

EXHIBIT 10.53 AMENDED AND RESTATED LETTER OF CREDIT CASH 

COLLATERAL AGREEMENT
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This Cash Collateral Agreement involves

BEARINGPOINT INC | BANK OF AMERICA, N.A., | JPMORGAN CHASE BANK, N.A.,

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Title: EXHIBIT 10.53 AMENDED AND RESTATED LETTER OF CREDIT CASH COLLATERAL AGREEMENT
Governing Law: New York     Date: 1/31/2006
Industry: SVSBUS    

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Exhibit 10.53

Exhibit 10.53

 

Execution Version

 

AMENDED AND RESTATED LETTER OF CREDIT CASH

COLLATERAL AGREEMENT

 

THIS AMENDED AND RESTATED LETTER OF CREDIT CASH COLLATERAL AGREEMENT (this “Agreement”) is made and entered into as of July 19, 2005 by and among BEARINGPOINT, INC., a Delaware corporation (the “Borrower”), the Administrative Agent (defined below), and each of BANK OF AMERICA, N.A., a national banking association organized and existing under the laws of the United States (“BOA”), JPMORGAN CHASE BANK, N.A., a national banking association organized and existing under the laws of the United States (“JPMCB” and, together with BOA the “Issuing Banks” and individually an “Issuing Bank”), and BOA as Depositary (the “Depositary”) of the LC Account (defined below). All capitalized terms used but not otherwise defined herein shall have the respective meanings assigned thereto in the Credit Agreement, defined below, notwithstanding the occurrence of the Facility Termination Date.

 

WITNESSETH:

 

WHEREAS, the Borrower, Bank of America, N.A. as Administrative Agent (the “Administrative Agent”) and the Lenders party thereto from time to time entered into a Credit Agreement dated as of December 17, 2004, as amended by that certain Amendment No. 1 to Credit Agreement dated as of March 17, 2005, as further amended by that certain Amendment No. 2 to Credit Agreement dated as of March 24, 2005 (the “Credit Agreement”); and

 

WHEREAS, there are currently outstanding under the Credit Agreement the Letters of Credit listed on Schedule I hereto, having an aggregate undrawn Dollar Equivalent amount (as of the last Revaluation Date) of $81,341,869.99 (the “Letters of Credit”; the aggregate undrawn Dollar Equivalent amount of the Letters of Credit from time to time is referred to as the “Aggregate Available Amount”); and

 

WHEREAS, in connection with the termination of the Aggregate Commitments and the occurrence of the Facility Termination Date under the Credit Agreement, the Borrower, the Administrative Agent, the Depositary and the Issuing Banks are parties to that certain Letter of Credit Cash Collateral Agreement dated as of April 26, 2005 (the “Existing LC Cash Collateral Agreement”) pursuant to which the Issuing Banks have required the Borrower to deliver immediately available funds to the Administrative Agent for deposit into a non-interest bearing cash collateral deposit account under the sole and exclusive control of, and in the name of, the Administrative Agent on behalf of itself and the Issuing Banks (the “LC Account”; fully collected funds on deposit from time to time in the LC Account are referred to as the “LC Cash Collateral”), as collateral security for (i) the payment of Letter of Credit Fees and certain other fees and charges as herein provided, and (ii) the payment and satisfaction of all other obligations and liabilities of the Borrower now owing or hereafter arising in favor of the Administrative Agent or either of the Issuing Banks in connection with the Letters of Credit or other provisions of the Loan Documents that survive (or continue notwithstanding the occurrence of) the Facility Termination Date; and


WHEREAS, the Borrower, the Administrative Agent, the Depositary and the Issuing Banks desire to amend and restate the Existing LC Cash Collateral Agreement in its entirety on the terms and conditions set forth herein;

 

NOW, THEREFORE, in consideration of the foregoing and the agreements, provisions and covenants contained herein, the parties hereto agree as follows:

 

1. Amendment and Restatement. The Borrower, the Administrative Agent and the Issuing Banks hereby agree that upon the effectiveness of this Agreement, the terms and provisions of the Existing LC Cash Collateral Agreement shall be and hereby are amended and restated in their entirety by the terms, conditions and provisions of this Agreement, and the terms and provisions of the Existing LC Cash Collateral Agreement, except as otherwise expressly provided herein, shall be superseded by this Agreement.

 

2. LC Account; Cash Collateralization of Letter of Credit.

 

(a) Account Creation and Control. The Administrative Agent has established with the Depositary, and the Depositary shall maintain until instructed to the contrary by the Administrative Agent, the LC Account for the benefit of the Administrative Agent and the Issuing Banks and under the sole dominion and control of the Administrative Agent. The LC Account shall be a non-interest bearing cash collateral deposit account designated as BearingPoint, Inc. (Cash Collateral Account), Account No.                         . Without limiting the foregoing, the parties hereto agree that the Depositary will comply with all instructions originated by the Administrative Agent directing the disposition of funds now or hereafter in the LC Account without further consent of the Borrower or any other Person, and that the Depositary will not honor any instructions with respect to the LC Account other than those of the Administrative Agent. The Borrower hereby grants to the Administrative Agent, for the benefit of the L/C Issuer and the Lenders, a security interest in all such cash, deposit accounts and all balances therein and all proceeds of the foregoing.

 

Payment into the LC Account hereunder should be made to Bank of America, N.A. by a wire transfer of immediately available funds directed as follows:

 

 

 

 

 

 

 

 

Bank of America, N.A.

Concord, CA

ABA# 121000358

Account No.:                     

 

 

 

(b) Initial Deposit. As of the date hereof, LC Cash Collateral in the initial amount equal $5,000,000 has been deposited into the LC Account in accordance with this Agreement, such LC Cash Collateral to be used for the payment of Letter of Credit Fees and fronting and other fees and the payment and satisfaction of all other obligations and liabilities of the Borrower now owing or hereafter arising in favor of the Administrative Agent or either of the Issuing Banks in connection with the Letters of Credit.

 

2


(c) Payment of Letter of Credit Fee and Fronting Fees. Notwithstanding anything contained in the Credit Agreement to the contrary, and notwithstanding the occurrence of the Facility Termination Date, the Letter of Credit Fee in respect of each Letter of Credit provided for in Section 2.03(i) of the Credit Agreement and all the fees and charges payable under Section&nbs

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